Tela (Migration) - [2020] AATA 825

Tela (Migration) [2020] AATA 825 (5 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Meharit Tela
VISA APPLICANT:  Miss Selam Mola Gebreslasie
CASE NUMBER:  1701235
DIBP REFERENCE(S):  OSF2015/075505
MEMBER:Justine Clarke
DATE:5 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.311 of Schedule 2 to the Regulations
·cl.300.321 of Schedule 2 to the Regulations

Statement made on 05 February 2020 at 4:25pm
CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – dependent child – sister’s child – deceased parents – change of surname – no evidence of adoption – legal guardianship – parties married after application – lack of evidence – claim of dual households – limited financial documents available – applicant reliant on support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 300.311, 300.321, rr 1.03, 1.04, 1.12
CASES

Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108
Zeng v MIMIA [2005] FMCA 546

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made, on 17 November 2016, by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
On 11 September 2015, Mr Amdemichael Nega Adane applied for the visa on the basis of his prospective marriage with his sponsor, Ms Meharit Alem Tela who is the review applicant in the present case. Miss Selam Mola Gebreslasie was included as a secondary applicant in that application. She is the visa applicant in the present case.
At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl.300.311 and cl.300.321.
The review applicant provided the Tribunal with a copy of the primary decision that was made in respect of Miss Gebreslasie. On 17 November 2016, the delegate made a decision to refuse to grant the visa. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.311 of Schedule 2 to the Regulations. Clause 300.311 requires that, at the time of application, the visa applicant is a member of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tela (Migration)

Details

AGLC: Tela (Migration) [2020] AATA 825
Case: [2020] AATA 825
Decision Date: 5 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Tela (Migration), involving a visa applicant and Mr Adane, who was the primary applicant. The dispute concerned whether the visa applicant was a member of Mr Adane's family unit at the time of the visa application.

The Tribunal was required to determine the meaning of "member of the family unit" as defined in regulation 1.12(1) of the Migration Regulations 1994, specifically in relation to the applicant's status as a dependent child or relative. The Tribunal also needed to consider whether the applicant met the criteria for being a member of the family unit at the time of the decision, as stipulated by clause 300.321 of the Migration Regulations.

The Tribunal noted that the former version of regulation 1.12(1) applied, which defines a member of the family unit to include a dependent child or a relative who is unmarried, usually resides with the family head, and is dependent on them. The applicant claimed to be the niece of the review applicant, with both parents deceased. However, concerns were raised by the Department regarding the applicant's identity due to school records indicating a change of surname by court order, which, in Ethiopian naming conventions, could signify a change in family history. The Tribunal found insufficient evidence to establish the claimed familial relationship under the relevant regulations.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether, at the time of application on 11 September 2015, the visa applicant was a member of the family unit of Mr Adane. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.300.321—a time of decision criterion—as well.Regulation 1.12(1) The expression ‘member of the family unit’ is defined in r.1.12. As the combined visa application was lodged prior to 19 November 2016, the former version of r.1.12 applies. This relevantly provides: (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation called the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or(e) a relative of the family head or of a spouse or de facto partner of the family head who:(i) does not have a spouse or de facto partner; and (ii) is usually resident in the family head’s household; and(iii) is dependent on the family head. In this case, Mr Adane—not the review applicant—is the so-called ‘family head’. This is because cl.300.311 provides:The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria …Which paragraph in r.1.12(1) applies? There is no evidence before the Tribunal to suggest that r.1.12(1)(a) or (c) apply. On the review applicant’s own evidence, the visa applicant Miss Gebreslasie, is her niece. In her signed statement delivered to the Tribunal on 2 March 2017, the review applicant claimed, ‘Miss Selam is the daughter of my biological sister who passed away’. At the hearing, both the review applicant and the visa applicant gave consistent oral evidence in this regard, telling the Tribunal the names of the visa applicant’s parents and explaining that the visa applicant’s late mother had been the review applicant’s sister and that both of the visa applicant’s parents were dead. The review applicant told the Tribunal that the visa applicant’s mother had died in 2006 and that her father died in 2011. Although not mentioned in the primary decision, the Department had some ‘serious concerns’ about the visa applicant’s identity stemming from her school records. Folio 142 of the Department’s file states:School Records – Selam Mola GEBRESLASIEOn 3/10/2016 a representative of IOM attended the issuing office and obtained the following information:·The applicant enrolled at the school on 26/08/2009 GC [presumably Gregorian Calendar]·The applicant is no longer a student at the school having left on 27/06/2016 GC·There was no record in relation to the applicant’s age provided at time of enrolment·There was no record in relation to who the applicant’s parents were or who the guardian of the applicant was·The school advised that the applicant changed her father’s name from ‘Alem Kahsay’ to ‘Mola Gebresilassie’ by court order and provided evidence of this to the school to support the name changeBased on the above information the referral is verified SERIOUS CONCERNS as it is unclear as to why the dependent applicant has changed her name and I am concerned that the name has been changed to show a claimed family relationship which does not exist noting the strong Ethiopian naming conventions which suggest that by changing your second and third names you have changed your family history and linage.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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